EU Court rules against Spain in energy merger saga

The European Court of Justice has ruled against Spain’s energy regulator, which previously succeeded in blocking a takeover attempt of Endesa by Germany’s E.ON. Meanwhile, Brussels has said it will take a closer look at a blocked merger in Hungary’s oil and gas sector.

“Spain has failed to fulfil its obligations under Community law,” the European Court of Justice (ECJ) said in a 6 March press release.

The statement was made in reference to the refusal by Spain’s energy regulator CNE to withdraw certain merger conditions imposed on Germany’s energy giant E.ON during its bid to acquire Spain’s Endesa.

The CNE ignored warnings and demands by the Commission to remove restrictive conditions attached to the merger, prompting the Commission to refer the case to the ECJ (EURACTIV29/03/07).

E.ON ultimately withdrew its Endesa bid due to concerns about shareholder losses and ‘unpredictable lawsuits’ (EURACTIV 03/04/07). But the expiry of the bid does not relieve CNE from obligations to remove regulatory obstacles to merger bids by other non-Spanish firms, according to the EU court.

“The fact that E.ON’s public offer failed does not necessarily mean that it was absolutely impossible to implement the [Commission’s] decisions, given that it was, for example, still possible formally to remove the provisions contrary to them,” the Luxembourg-based court said.

In a separate case, the Commission has decided to launch an ‘in-depth investigation’ into a bid by Austria’s OMV to acquire Hungary’s MOL, a merger that was blocked by Hungarian competition authorities over fears that it would create an oil and gas sector monopoly.

Initially the Commission expressed concern that Budapest was acting contrary to EU competition rules (EURACTIV 27/09/07), but Brussels may have reconsidered its assessment.

The Commission now wants to make sure that “effective competition is preserved for the benefit of both domestic and industrial consumers,” EU Competition Commissioner Neelie Kroes said in a statement.